Under The Tcpa, Conditional Appellate Attorney’s Fees Are Required

In Johnson-Todd v. Morgan, 09-17-00168-CV, 09-17-00194-CV, (Tex. App. – Beaumont December 20, 2018) (mem. op.), an attorney was sued by the husband after a divorce where the attorney represented the wife. The attorney filed a motion to dismiss under the Texas anti-SLAPP law, TCPA. The motion was overruled by operation of law and the attorney appealed. The appeals court reversed the trial court:

On appeal, this Court concluded that the trial court was required to dismiss Morgan’s suit against Johnson-Todd because the complained-of disclosures that Johnson-Todd made in the family-law proceeding were based on, related to, or were in response to Johnson-Todd’s or her client’s exercise of the right to petition… Accordingly, we reversed the trial court’s ruling and remanded the case to the trial court with instructions to enter a judgment dismissing Morgan’s 2014 claims and to award Johnson-Todd damages and costs as provided by the TCPA. The mandate issued by this Court provides, in pertinent part, that the “cause is remanded to the trial court for further proceedings consistent with this Court’s opinion[, ]” and that all costs of the appeal are assessed against Morgan.

Remand

When the case was remanded, Johnson-Todd filed an amended motion to award attorney’s fees and sanctions and to have Morgan declared a vexatious litigant. Morgan filed a motion for sanctions against Johnson-Todd for filing those motions to which she filed a new motion to dismiss under the TCPA. Morgan also filed a motion to dismiss under the TCPA against Johnson-Todd’s motion to dismiss under the TCPA. The trial court eventually dismissed all of Morgan’s claims and awarded Johnson-Todd $40,000 in attorney’s fees and $25,000 in sanctions but did not award conditional appellate attorney’s fees. Both parties appealed. The appeals court denied all claims except the trial court’s denial of Johnson-Todd’s conditional awards of appellate attorney’s fees. Under the TCPA, conditional appellate attorney’s fees are required.

The Texas Anti-SLAPP law or TCPA has a three step process. In step one, the movant bears the burden of establishing by a preponderance of the evidence that the nonmovant’s claim is a legal action in response to the movant’s exercise of his right of association, his exercise of his right of free speech or his exercise of his right to petition. §27.003 (a).

 In December 2014, Morgan filed suit against Johnson-Todd, his ex-wife’s divorce attorney, for damages and injunctive relief, alleging that Johnson-Todd violated court orders by disclosing and publishing restricted information that Morgan asserted was subject to an order of non-disclosure.

The appeals court held that the alleged disclosures “were based on, related to, or were in response to Johnson-Todd’s or her client’s exercise of the right to petition.” 

Once the movant has shown that the nonmovant’s legal action is covered by the act, the burden shifts to the nonmovant to demonstrate a prima facie case for each essential element of a cause of action by “clear and specific evidence.” §27.005 (c).

Morgan did not meet his burden of showing by clear and specific evidence each element of his claim, so it had to be dismissed and attorney’s feed and sanctions awarded.

If the nonmovant meets his burden of establishing a prima facie case for each essential element of a cause of action by “clear and specific evidence”, the court must still grant the motion to dismiss if the movant establishes a valid defense by a “preponderance of evidence”. §27.005 (d).

The court never reached the third step because Morgan failed to carry his burden under Step-two.

Under The TCPA, Conditional Appellate Attorney’s Fees Are Required

This is a complicated decision because the issues presented in this appeal were really not the issues on which the appeals court ruled. The court spent some time on the trial court exceeding the mandate of an earlier appeal where the court had ordered the case dismissed under the TCPA and remanded for the trial court to award attorney’s fees and sanctions. It also talked about the trial court’s award of $40,000 in attorney’s fees and $25,000 in sanctions. Johnson-Todd had asked the trial court for $229,000 in attorney’s fees and $229,000 in sanctions. In this appeal, the court denied all relief requested except that it reversed the trial court stating that under the TCPA, conditional appellate attorney’s fees are required.

Interesting point

The court did rule that an attorney can file a TCPA motion to dismiss a claim against the attorney when the rights to petition are the attorney’s rights or the rights of the person they represent. Compare this case with LFMC Enters., LLC v. Baker. In that case, the court ruled that the right of association had to be your right to associate, not someone else’s right to associate.

Other cases on appellate attorney’s fees under the TCPA

DeAngelis v. Protective Parents Coal., 556 S.W. 3d 864 (Tex. App. – Fort Worth 2018, no pet.) holding that a successful movant is entitled to conditional appellate attorney’s fees.

McGibney v. Rauhauser, 549 S.W.3d 816 (Tex. App.—Fort Worth 2018, pet. denied) holding that the conditional award of attorney’s fees on appeal was improper where the judgment stated “[c]onditional attorney’s fees of $50,000.00 for a second appeal to the court of appeals, which such appeal does not result in a complete reversal of all amounts awarded. ”